Blinded by Science on
the Road to Abolition?
Simon A. Cole and Jay D. Aronson
The central conceit of this essay is that the rhetorical invocation of science has been crucial to whatever recent progress the United States has made along the “road to abolition.” Here we focus on three important milestones. First is what has been called the “innocence revolution,” the harnessing of public awareness of wrongful convictions to stir up opposition to capital punishment based on the possibility of executing the innocent.1 This trend has rested heavily on the “epistemological certainty” of DNA evidence.2 Second was the recent (but temporary) de facto moratorium on executions generated by legal challenges to lethal injection protocols. Such challenges have rested heavily on appeals to medical knowledge about the possibility of causing unnecessary pain in the condemned. Third is the progress in what death penalty proponents suspect (and perhaps not without reason) is what Justice Antonin Scalia has called the “incremental abolition” of the death penalty, the winning of favorable Supreme Court judgments for categorical exemptions from the death penalty, thus chipping away at capital punishment.3 Over the past several years, the Court has outlawed capital punishment for juveniles and the mentally retarded, and, to Scalia's consternation, these decisions are probably irreversible. Although the Court's opinions were not laden with scientific discourse in either case, the legal debates that led to these decisions drew heavily on scientific evidence to support claims of diminished moral culpability among these categories of offenders.
In this chapter, we examine three case studies of rhetorical appeals to the authority of science along the road to abolition. On innocence, we focus on the case United States v. Quinones, in which Federal District Judge